in Re: Kelly Brady ( 2015 )

ACCEPTED
12-15-00307-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
12/16/2015 5:03:28 PM
Pam Estes
CLERK
IN THE
TWELFTH DISTRICT COURT OF APPEALS
TYLER, TEXAS FILED IN
12th COURT OF APPEALS
TYLER, TEXAS
12/16/2015 5:03:28 PM
In Re KELLY BRADY PAM ESTES
Clerk
Original Proceeding From the
th
114 Judicial District Court of Smith County, Texas
PETITION FOR WRIT OF MANDAMUS
William S. Hommel, Jr.
HOMMEL LAW FIRM
1404 Rice Road, Suite 200
Tyler, Texas 75703
State Bar No. 09934250
ATTORNEY FOR KELLY BRADY, RELATOR
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
The following is a complete list of all parties, as well as the names and
addresses of all counsel.
PARTIES COUNSEL
Relator:
Kelly Brady William S. Hommel, Jr.
1172 Hunters Trail Hommel Law Firm
Flint, TX 75762 1404 Rice Road, Suite 200
Tyler, Texas 75703
Respondent:
THE HON. CHRISTI KENNEDY None
Smith County Courthouse
100 N. Broadway, Room 209
Tyler, Texas 75702
Real Party in Interest:
JKS Travel, Inc. dba Roger Anderson
Travel Masters and Gillen & Anderson
Sharon K. Howell 613 Shelley Park Plaza
Tyler, Texas 75701
915 W. Southwest Loop 323
Tyler, TX 75701
ii
TABLE OF CONTENTS
Index of Authorities ..................................................................................................iv
Statement of the Case................................................................................................. 1
Statement of Jurisdiction……………………………………………………………2
Issues Presented ......................................................................................................... 2
Statement of Facts ...................................................................................................... 2
Argument and Authorities.......................................................................................... 4
Conclusion ................................................................................................................. 8
Verification .............................................................................................................. 10
Certificate of Compliance…………………………………………………………11
Certificate of Service ............................................................................................... 11
Appendix
Trial Court’s Order Denying Motion to Disqualify ................................ Tab 1
Declaration of Kelly Brady……………………………………………...Tab 2
Emails between Gillen and Brady.……………………………………...Tab 3
iii
INDEX OF AUTHORITIES
CASES
CSR Ltd. v. Link, 925 S.W.2d 591, 596 (Tex.1996)………………………………..8
In re Columbia Valley Healthcare Sys., L.P., 320 S.W.3d 819, 824 (Tex. 2010) (orig.
proceeding)…………………………………………………………………………6
In re Epic Holdings, Inc., 985 S.W.2d 41 (Tex., 1998)…………………………….6
In re Gunn, No. 14-13-00566-CV, 2013 WL 5631241, *2 (Tex. App.—Houston
[14th Dist.] Oct. 15, 2013, orig. proceeding) (mem. op., per curiam)………….…..5
In re Louisiana Texas Healthcare Mgmt., L.L.C., 349 S.W.3d 688, 689 (Tex. App.
2011)………………………………………………………………………………..4
In re Mitcham, 133 S.W.3d 274, 276 (Tex. 2004) (per curiam) (orig. proceeding)..6
In re Nitla, 92 S.W.3d at 423……………………………………………………….4
In re Ruvalcaba, 2014 WL 5089388(Tex. App
Houston [14th] 2014)…………………………………………………..……………7
In re Sanders, 153 S.W.3d 54, 57 (Tex. 2004)………………………………………4
In re Users Sys. Servs., Inc., 22 S.W.3d 331, 336 (Tex. 1999)……………………..5
National Medical Enterprises, Inc. v. Godbey, 924 S.W.2d 123, 133 (Tex.1996)
(orig. proceeding)…………………………………………………………………...4
NCNB Texas Nat'l Bank v. Coker, 765 S.W.2d 398, 400 (Tex.1989)………………4
iv
Spears v. Fourth Ct. App., 797 S.W.2d 654, 656 (Tex. 1990)………………………5
Walker v. Packer, 827 S.W.2d 833, 842 (Tex.1992)………………………………..4
STATUTES AND RULES
TEX. GOV’T CODE § 22.221(b)(1)……………………………………………….2
Tex. Disciplinary R. Prof. Conduct, R. 1.09 (1989)………………………………..5
v
STATEMENT OF THE CASE
This case was filed by Kelly Brady (“Brady”), who worked for Defendant JKS
Travel, Inc. dba Travel Masters (“Travel Masters”) as a travel consultant from 2008
to March 13, 2015. Defendant, Sharon K. Howell is the President and CEO of Travel
Masters. Brady filed suit on August 27, 2015 seeking an accounting of her
commissions, breach of contract, a declaration that her non-complete was not
enforceable, for tortious interference and defamation. The case was assigned to the
Honorable Christi Kennedy in the 114th District Court in Smith County. After
learning the identity of defense counsel, Brady filed a motion to disqualify the firm
of Gillen & Anderson by reason of communications with James Gillen’s in
connection with his prior representation of Brady regarding the formation of the
business in which she has worked since her separation of employment from Travel
Masters. Brady claims she disclosed information to Gillen with are directly related
to her claims against Howell and Travel Masters. A hearing on the motion to
disqualify was held on November 6, 2015. On November 19, 2015, Judge Kennedy
denied the Motion and entered the attached Order. See Appendix, Tab 1.
Brady seeks relief from Judge Kennedy’s Order. Defense Counsel’s prior
representation of Brady constitutes a conflict of interest and also is a violation of
Rule 1.09 of the Texas Disciplinary Rules of Professional Conduct. Mandamus is
appropriate under the circumstances because Judge Kennedy abused her discretion
1
in denying Brady’s Motion and because Brady has no adequate remedy by appeal.
Brady respectfully requests that this Petition be granted and that the Court require
Judge Kennedy to vacate her prior order and disqualify Gillen & Anderson from its
representation of Defendants.
STATEMENT OF JURISDICTION
This Court has jurisdiction over this Petition under TEX. GOV’T CODE §
22.221(b)(1).
ISSUES PRESENTED
First, whether the trial court abused its discretion in failing to disqualify
defense counsel based upon its prior representation of Relator and the disclosure by
Relator to defense counsel of facts regarding the claims asserted against Defendant
in the underlying case.
STATEMENT OF FACTS
Relator is Kelly Brady; Defendants are JKS Travel, Inc. dba Travel Masters
and Sharon K. Howell; opposing counsel is Roger Anderson of Gillen & Anderson
of Tyler, Texas. Brady is a former employee of JKS Travel, Inc. dba Travel
Masters.
Relator sued Defendants for a declaratory judgment, for an accounting and for
tortious interference. The crux of Relator’s claims against Defendants relate to her
2
allegation that Travel Masters did not provide her with an accounting of her
commissions earned and possibly failed to pay commissions properly, as well as her
claims that Sharon K. Howell has disparaged Brady in an effort to harm her business
and also caused Brady harm in her divorce proceeding.
Relator retained the firm of Gillen & Anderson, specifically James Gillen, to
advise her regarding the formation of her new travel business, 5 Star Travel.
Relator discussed factual issues with Mr. Gillen which are now the same factual
allegations which form the basis for Relator’s claims against Travel Masters and
Howell. These conversations were recounted in Relator’s declaration filed with the
trial court, which is attached hereto behind Tab 2. Additionally, Relator has
attached the emails between herself and Mr. Gillen regarding his representation of
Relator, which are attached hereto behind Tab 3. The factual basis for Relator’s
petition are some of the same facts which she disclosed and discussed with Mr.
Gillen.
Relator filed a motion asking the trial court to disqualify the firm of Gillen &
Anderson from further representation of all Defendants because of counsel’s prior
representation of Relator. At the hearing on the Motion to Disqualify, Relator
testified to the matters contained in her declaration and specifically testified the she
3
disclosed to James Gillen the facts which form the basis for her lawsuit.1 The trial
court denied the motion to disqualify defense counsel from its representation of
Defendants. The order denying the motion to disqualify is attached hereto behind
Tab 1.
ARGUMENT AND AUTHORITIES
The denial of a motion to disqualify is reviewable by mandamus. See National
Medical Enterprises, Inc. v. Godbey, 924 S.W.2d 123, 133 (Tex.1996); In re
Louisiana Texas Healthcare Mgmt., L.L.C., 349 S.W.3d 688, 689 (Tex. App. 2011).
To obtain mandamus relief, Brady must show that the district court's refusal to
disqualify Gillen & Anderson as defense counsel in the pending litigation was a clear
abuse of discretion for which there is no adequate remedy by appeal. Walker v.
Packer, 827 S.W.2d 833, 842 (Tex.1992).
The movant bears the burden to prove that the attorney should be disqualified.
See In re Sanders, 153 S.W.3d 54, 57 (Tex. 2004) (stating the party requesting
disqualification must demonstrate an opposing lawyer's dual roles as attorney and
witness will cause the party actual prejudice); In re Nitla, 92 S.W.3d at 423 (holding
that the party moving to disqualify opposing counsel who reviewed privileged
1 The transcript of the hearing on the Motion to Disqualify has been requested from Cassie Condrey, the official
reporter for the 114th Judicial District Court. Relator will supplement the record as soon as the transcript is
prepared.
4
documents must show actual harm and that disqualification is necessary because the
trial court lacks any lesser means to remedy the moving party's harm); NCNB Texas
Nat'l Bank v. Coker, 765 S.W.2d 398, 400 (Tex.1989) (requiring moving party to
prove the existence of a prior attorney-client relationship in which the factual matters
involved were so related to the facts in the pending litigation that it creates a genuine
threat that confidences revealed to the former counsel will be divulged to the present
adversary). This burden requires proof of specific facts to meet the exacting standard
necessary to establish disqualification is required. See: Spears v. Fourth Ct. App.,
797 S.W.2d 654, 656 (Tex. 1990).
The Texas Disciplinary Rules of Professional Conduct do not determine
whether counsel is disqualified, but they do provide guidelines and suggest the
relevant issues courts should consider. Nat'l Med. Enters., Inc. v. Godbey, 924
S.W.2d 123, 132 (Tex. 1996). Even if a lawyer violates a disciplinary rule, however,
the party requesting disqualification must demonstrate that the opposing lawyer's
conduct caused actual prejudice that requires disqualification. See: In re Users Sys.
Servs., Inc., 22 S.W.3d 331, 336 (Tex. 1999); In re Gunn, No. 14-13-00566-CV,
2013 WL 5631241, *2 (Tex. App.—Houston [14th Dist.] Oct. 15, 2013, orig.
proceeding) (mem. op., per curiam).
5
Relator contends that allowing Defendant’s counsel to continue his
representation of Defendants will violate Rule 1.09 of the Texas Disciplinary Rules
of Professional Conduct, which provides in pertinent part:
Without prior consent, a lawyer who personally has formerly
represented a client in a matter shall not thereafter represent another
person in a matter adverse to the former client: (3) if it is the same or
a substantially related matter. See also: In re Epic Holdings, Inc., 985
S.W.2d 41 (Tex., 1998).
Relator contends that Mr. Anderson’s representation of Defendants is in violation of
Rule 1.09, which addresses conflicts of interest that arise in representing someone
who is adverse to a former client. See Tex. Disc. R. Prof'l Conduct 1.09, reprinted
in Gov't Code tit. 2, subtit. G, app. A, art. 10, § 9. See also, In re Gunn, No. 14-13-
00566-CV, 2013 WL 5631241, *2 (Tex. App.—Houston [14th Dist.] Oct. 15, 2013,
orig. proceeding) (mem. op., per curiam).
Opposing counsel should be disqualified because his law firm represented
Relator in a matter involving a matter factually related to the current case. See: Ex
A - Declaration of Kelly Brady. If a lawyer works on a matter, "there is an
irrebuttable presumption that the lawyer obtained confidential information during
representation." In re Columbia Valley Healthcare Sys., L.P., 320 S.W.3d 819, 824
(Tex. 2010) (orig. proceeding). Furthermore, an "attorney's knowledge is imputed
by law to every other attorney in the firm Nat'l Med. Enters., Inc. v. Godbey, 924
6
S.W.2d 123, 131 (Tex. 1996) (orig. proceeding). Consequently, there is an
"irrebuttable presumption that an attorney in a law firm has access to the confidences
of the clients and former clients of other attorneys in the firm." Id.; see also In re
Mitcham, 133 S.W.3d 274, 276 (Tex. 2004) (per curiam) (orig. proceeding). ("For
attorneys, there is an irrebuttable presumption they gain confidential information on
every case at the firm where they work (whether they work on them or not)."). In re
Ruvalcaba 2014 WL 5089388 (Tex. App – Houston [14th] 2014).
The information imparted by Relator to James Gillen form the crux of the
complaint against the Defendants. Relator discussed with Gillen her belief that she
was not paid properly, that Sharon Howell had disparaged her and finally the
enforceability of her non-compete agreement with Travel Masters. The meeting as
documented by Relator’s testimony, declaration and the email correspondence
establish a conflict that cannot be overcome by Gillen’s testimony. Gillen testified
that he recalled meeting with Brady on one occasion, but his memory was vague as
to the exact nature of the conversations. Gillen does not dispute his prior
representation of Travel Masters, nor does he dispute his representation of 5 Star
Travel.
Additionally, if opposing counsel is permitted to participate, there will be an
appearance of impropriety because his law firm previously represented Relator in a
7
matter closely related to the matter before the Court. Further, the likelihood of
public suspicion resulting from the impropriety outweighs any social interest that
will be served by Mr. Anderson’s participation. Specifically, the public is entitled
to have confidence in the legal profession that allows them to trust the justice system
without a conflict of interest being allowed to exist on the part of one of the lawyers
representing a party and then taking the other side of the case.
Judge Kennedy’s denial of the motion to disqualify can only be explained by
her complete disregard of Relator’s proof of her conversations and communications
with Gillen. This is the essence of an abuse of discretion. A clear abuse of
discretion occurs when an action is “so arbitrary and unreasonable as to amount to a
clear and prejudicial error of law.” CSR Ltd. v. Link, 925 S.W.2d 591, 596
(Tex.1996).
CONCLUSION
For these reasons, Brady respectfully requests this Court upon final
consideration grant the writ and order Judge Kennedy to vacate her Order and
disqualify the firm of Gillen & Anderson from its representation of Defendants.
8
Respectfully submitted,
______________________________
William S. Hommel, Jr.
State Bar No. 09934250
HOMMEL LAW FIRM
1404 Rice Road, Suite 200
Tyler, Texas 75703
(903) 596-7100
(469) 533-1618 Facsimile
ATTORNEY FOR KELLY BRADY, RELATOR
9
CERTIFICATE OF COMPLIANCE
I hereby certify that this petition complies with the type-volume limitation
set out in Tex. R. App. P. 9.4 (i)(3). The brief was prepared using Word 2013, and
contains 1,688 words.
CERTIFICATE OF SERVICE
The undersigned certifies that a true and correct copy of the foregoing was
forwarded on December 16, 2015 via electronic mail and facsimile to:
The Honorable Christi Kennedy
114th Judicial District Court
100 N. Broadway
Smith County Courthouse
Tyler, Texas 75702
Roger Anderson
Gillen & Anderson
613 Shelley Park Plaza
Tyler, Texas 75701
William S. Hommel, Jr.
Attorney for Relator
11
TAB 1
- - - \1
NO . 15-1812-B
(
KELLY BRADY § IN THE DISTRIQT ~ro. "'rl!lo/Irl l
§
VS. § OF SMITH COUNTY, TEXAS
§
JKS TRAVEL, INC. d/b/a §
TRAVEL MASTERS AND §
SHARON K. HOWELL § 114TH JUDICIAL DISTRICT
ORDER
On this day came on to be considered Plaintiffs Motion to Disqualify Opposing Counsel,
and the Court is of the opinion that said Motion is not well taken.
It is, accordingly, ORDERED, ADJUDGED and DECREED that Plaintiffs Motion to
Disqualify Opposing Counsel is DENIED.
SIGNED this ~ day of 0o~,-. ,2015.
(}Q4Jvv1l "
JUDGE ~-G----
ORDER-PAGE SOLO
TAB 2
TAB 3
Bill Hommel
From: 5starescapes@gmail.com
Sent: Wednesday, September 23, 2015 3:35 PM
To: Bill Hommel
Subject: Fw: Fwd: LTGTR Travel, LLC
Attachments: Acknowledgment.pdf; Certificate.pdf; Original_Document.pdf
See Below.
KELLY BRADY CTA,DS
5 STAR ESCAPES
PO Box 263 Flint TX 75762
5StarEscapes@gmail.com
903.710.2628
The world is your canvas...Let us help create your masterpiece!
Proudly Affiliated with NEXION and Travel Leaders.
From: 5StarEscapes
Sent: Monday, April 13, 2015 2:33 PM
To: Kelly Brady
Subject: Fwd: LTGTR Travel, LLC
‐‐‐‐‐‐‐‐‐‐ Forwarded message ‐‐‐‐‐‐‐‐‐‐
From: 5StarEscapes <5starescapes@gmail.com>
Date: Tue, Mar 24, 2015 at 2:06 PM
Subject: Fwd: LTGTR Travel, LLC
To: Jim Gillen 
Hello Jim,
Lynn's SS number. It is 451‐ 92‐6250.
1
Lynn and I want to so thank you for helping us with the LLC and the tax ID
number.
You have been a big help!!
Kelly Brady
903‐570‐6392
From: Jim Gillen 
Date: March 23, 2015 at 8:32:36 AM CDT
To: "kellyvs1@gmail.com" 
Subject: FW: LTGTR Travel, LLC
Good Morning Kelly—
The LLC has been approved by the Secretary of State.
At such time as you need to open a bank account for the business, you will
also need a tax id number. You really need to have the accountant for your
business obtain this number—he can get it with the attached + Lynn’s
Social Sec #. If you would rather me obtain it, I can do it if you will get
Lynn’s SS # for me. I normally prefer accountants to do that part only
because there are tax elections called for on the form that I am not qualified
to know. If I do get it, I need to know how many employees you expect to
have during the first year.
JIM GILLEN
GILLEN & ANDERSON, ATTORNEYS
613 Shelley Park Plaza
2
Tyler, TX 75701
903/581-3861 (Direct Dial)
903/581-8600 (Main Firm line)
903/581-8790 (Fax)
From: Bonnie Brooks
Sent: Monday, March 23, 2015 8:21 AM
To: Jim Gillen
Subject: LTGTR Travel, LLC
Jim, attached are the Secretary of State’s approval docs for LTGTR Travel, LLC.
Bonnie Brooks
Legal Assistant to James B. Gillen, Jr.
Gillen & Anderson
613 Shelley Park Plaza
Tyler, TX 75701
Phone: (903) 581-8600
Fax: (903) 581-8790
Email: bbrooks@gillenanderson.com
3
Bill Hommel
From: 5starescapes@gmail.com
Sent: Wednesday, September 23, 2015 3:36 PM
To: Bill Hommel
Subject: Fw: Tax id
Attachments: CCE03252015_0001.pdf
KELLY BRADY CTA,DS
5 STAR ESCAPES
PO Box 263 Flint TX 75762
5StarEscapes@gmail.com
903.710.2628
The world is your canvas...Let us help create your masterpiece!
Proudly Affiliated with NEXION and Travel Leaders.
From: Jim Gillen
Sent: Wednesday, March 25, 2015 8:20 AM
To: 5StarEscapes
Subject: Tax id
Kelly—
Attached is tax id I obtained this morning.
We will file today online with the Secy of state the dba for 5 Star Escapes. Also, one
should be filed with our local County Clerk, but that is one we will have to prepare and
have you sign.
Anyway, that will not hold you up from doing any and everything you need to do.
JIM GILLEN
GILLEN & ANDERSON, ATTORNEYS
613 Shelley Park Plaza
Tyler, TX 75701
903/581-3861 (Direct Dial)
1
903/581-8600 (Main Firm line)
903/581-8790 (Fax)
2